Garner

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BYRON GARNER * CIVIL ACTION

VERSUS * NO. 25-294 DIV. (2)

TANGIPAHOA PARISH SCHOOL BOARD * MAG. JUDGE CURRAULT

ORDER AND REASONS

This matter was referred for all proceedings including entry of judgment in accordance

with 28 U.S.C. § 636(c) upon the written consent of all parties. ECF No. 24.

Pending before me is Defendant Tangipahoa Parish School Board’s Motion to Dismiss

pursuant to Rules 12(b)(2) and 12(b)(5). ECF No. 12-1. Plaintiff Byron Garner filed an

Opposition Memorandum, and Defendant filed a Reply Memorandum. ECF Nos. 18, 20. No party

requested oral argument in accordance with Local Rule 78.1, and the Court agrees that oral

argument is unnecessary.

Having considered the record, the submissions and arguments of counsel, and the

applicable law, Defendant’s Motion to Dismiss, construed as a Motion to Quash, is GRANTED

for the reasons stated herein. Plaintiff shall effect proper service on Tangipahoa Parish School

Board by no later than December 10, 2025.

I. BACKGROUND

Plaintiff filed this suit against his employer Tangipahoa Parish School Board alleging

discriminatory failure to promote (from Head Basketball Coach to Principal and/or Assistant

Principal) in 2022 and 2023 and retaliation by being placed on administrative leave in December

2023. ECF No. 1 ¶¶ 5-8. Plaintiff asserts claims under Title VII (discrimination and retaliation),

the Americans with Disabilities Act, and 42 U.S.C. § 1981. Id. ¶¶ 12-24.

Plaintiff filed suit on February 11, 2025, with summons issued on February 12, 2025. ECF

Nos. 1, 6. When Plaintiff failed to effect service within 90 days as required by Rule 4(m) of the

Federal Rules of Civil Procedure, the undersigned issued a show cause order on August 8, 2025.

ECF No. 7. In response, Plaintiff indicated that he sent a request for waiver on March 10, 2025,

but Defendant did not waive service. ECF No. 8. Although Plaintiff, who is proceeding in forma

pauperis pursuant to 28 U.S.C. § 1915, was entitled to request that the U.S. Marshal effect service,

he elected to request additional time to secure funds to hire a process server. Id. ¶ 4. As requested,

the Court extended the deadline to effect service until October 9, 2025. ECF No. 9.

Plaintiff filed a Return of Service into the record indicating service upon Defendant

through Amanda Ragoonath on October 2, 2025. ECF No. 11 at 3. Although the return reflects

that Plaintiff hired a private process server, the process server appears to have simply delivered a

copy of the summons and complaint to a random employee, not to the properly designated agent

for service. Id. As such, the private process server failed to properly serve Defendant, which

Plaintiff concedes. ECF No. 18 at 2-3.

Defendant now seeks dismissal, asserting that Plaintiff did not receive his right to sue letter

until March 20, 2025, which was after he filed suit, and that Plaintiff failed to effect proper service

within 90 days of filing the complaint, as required by Rule 4(m). ECF No. 12. Defendant asserts

that Rule 4(j)(2) governs service on political subdivisions and requires delivery to the chief

executive officer or in the manner prescribed by state law, which in Louisiana requires service on

the President or Vice-President under LA. REV. STAT. § 17:51. ECF No. 12-1 at 2-3. Defendant

asserts that Ms. Ragoonath is neither the Chief Executive Officer nor the President or Vice-

President of the School Board; therefore, she is not a proper recipient of service. Id. at 3.

Defendant requests that the case be dismissed with prejudice because any claim would now be

time-barred. Id. at 3-6.

In Opposition, Plaintiff concedes that service was improper. ECF No. 18 at 2-3. However,

he asks that service be quashed due to his technical defect and that he be given an additional 14

days within which to serve the proper officer. Id. at 1-2. Plaintiff argues that even a Rule 4(m)

dismissal without prejudice would effect a dismissal with prejudice because the limitation period

has now expired, and dismissal based on procedural error is contrary to the goal of resolving

disputes on the merits. Id. Plaintiff further argues that an extension of the service deadline is

proper because Defendant received notice of the suit and is not prejudiced. Id. at 4-6.

In Reply, Defendant argues that Plaintiff already received a 30-day extension of Rule

4(m)’s deadline and reiterates its request for dismissal with prejudice. ECF No. 20 at 1-3. It

further argues that notice of suit is not a defense to insufficient service and suggests that the

heightened standard under Millan v. USAA General Indemnity Co.1 is inapplicable because service

was only four days after the deadline in that case. Id. at 3-5.

II. APPLICABLE LAW AND ANALYSIS

Although Rule 4(d)(1) imposes a duty to avoid unnecessary expense of service on an

individual, corporation, or association subject to service under Rule 4(e), (f), or (h), it does not

impose that obligation on political subdivisions subject to service under Rule 4(j).2 Therefore,

Plaintiff’s March 12, 2025, request for waiver was procedurally improper.

Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part:

1 546 F.3d 321 (5th Cir. 2008).

2 Moore v. Hosemann, 591 F.3d 741, 746 (5th Cir. 2009) (explaining that Rule 4(j) renders Rule 4(d) inapplicable to

local municipal corporations and any other state-created governmental organization that is subject to suit); Pechon v.

La. Dep't of Health & Hosps., No. 08-0664, 2009 WL 10680050, at *2 (E.D. La. Jan. 12, 2009) (noting that Rule

4(d)’s waiver-of-service provision does not apply to actions against governments subject to service under Rule 4(j)

(citing FED. R. CIV. P. 4 advisory committee’s notes to 1993 amendments)).

If a defendant is not served within 90 days after the complaint is filed, the court—

on motion or on its own after notice to the plaintiff—must dismiss the action

without prejudice against that defendant or order that service be made within a

specified time. But if the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.

While Rule 4(m) permits a court to dismiss a case without prejudice if the plaintiff fails to serve

the defendant within the specified time,3 the court must extend the deadline for service if plaintiff

can establish good cause for failing to serve the defendant.4 Even if the plaintiff lacks good cause,

the court has discretionary power to extend the time for service.5 In this case, the Court extended

the period for service through October 9, 2025, and Plaintiff effected service, albeit insufficiently,

within the extended Rule 4(m) deadline.

A dismissal under 12(b)(5) is typically granted without prejudice because “dismissal with

prejudice is an extreme sanction that deprives a litigant of the opportunity to pursue his claim.”6

District courts enjoy broad discretion in Rule 12(b)(5) context.7 The abuse of discretion standard

requires a finding that no reasonable person could take the view adopted by the trial court.8

Although a district court's Rule 12(b)(5) or 4(m) dismissal of a claim is reviewed for abuse of

discretion, review is more exacting and requires heightened scrutiny when the dismissal bars

further litigation.9 In this case, the heightened standard applies because dismissal of this matter,

even without prejudice, would effectively constitute a dismissal with prejudice because more than

3 Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).

4 Id.

5 Id.

6 Denham v. Watkins, No. 24-60201, 2024 WL 4403871, at *2 (5th Cir. Oct. 4, 2024) (quoting Millan, 546 F.3d at

326).

7 See George v. U.S. Dep’t of Lab., Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986) (per

curiam) (“The district court enjoys a broad discretion in determining whether to dismiss an action for ineffective

service of process.”).

8 See Henderson v. Republic of Tex., 672 F. App'x 383, 384 (5th Cir. 2016) (quoting Ratliff v. Stewart, 508 F.3d 225,

229 (5th Cir. 2007); and citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996)).

9 Lucero v. Wheels India, Ltd., No. 23-10494, 2023 WL 8622293, at *2 (5th Cir. Dec. 13, 2023) (citing Coleman v.

Sweetin, 745 F.3d 756, 766 (5th Cir. 2014)).

90 days passes since the EEOC’s March 20, 2025, determination letter. Therefore, and contrary

to Defendant’s assertion, this heightened standard of review applies to Defendant’s current request

for dismissal.10

When affirming dismissals under the applicable heightened standard, the Fifth Circuit

generally requires at least one of the following aggravating factors: (1) delay caused by plaintiff

himself, not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional

conduct.11 Because a dismissal with prejudice is an extreme sanction that deprives a litigant of the

opportunity to pursue his claim, such a dismissal should be in the interest of justice.12 In short, the

Fifth Circuit reserves dismissals with prejudice for “cases where the plaintiff's conduct has

threatened the integrity of the judicial process, often to the prejudice of the defense, leaving the

court no choice but to deny that plaintiff its benefits.”13

Even absent a showing of good cause, a district court may still assess the fairness of an

extension for proper service.14 And the broad discretion afforded to district courts includes the

discretion to construe a Rule 12(b)(5) motion to dismiss as a motion to quash service.15 When

there is “a reasonable prospect that plaintiff ultimately will be able to serve defendant properly,”

the appropriate course of action is to quash service and allow the plaintiff an opportunity to effect

proper service, thus preserving the matter before the court.16

10 Millan, 546 F.3d at 326. The Fifth Circuit continues to apply Millan’s heightened standard to any dismissal that is

effectively a dismissal with prejudice. See, e.g., Yanez v. Dish Network, L.L.C., 140 F.4th 626, 632 (5th Cir. 2025)

(rejecting argument that heightened standard does not apply to sua sponte dismissals under Rule 41(b)); Hill v. Hall,

No. 22-40827, 2025 WL 40867, at *2 (5th Cir. Jan. 7, 2025); Shah v. Novelis, No. 23-40231, 2024 WL 1739753, at

*6 (5th Cir. Apr. 23, 2024).

11 Millan, 546 F.3d at 326 (alteration in original) (quotation marks and citation omitted); McNeal v. Papasan, 842 F.2d

787, 790 (5th Cir. 1988).

12 Lucero, 2023 WL 8622293, at *2 (citing Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir.

1980)).

13 Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982).

14 See Thompson, 91 F.3d at 21.

15 See, e.g., U.S. Fire Ins. Co. v. Miller, No. 02-1828, 2002 WL 31886812, at *2 (E.D. La. Dec. 18, 2002) (Vance, J.).

16 Thomas v. New Leaders for New Schs., 278 F.R.D. 347, 352 (E.D. La. 2011) (Africk, J.) (quoting 5B WRIGHT &

MILLER’S FEDERAL PRACTICE & PROCEDURE § 1354 (3d ed. 2004)); see also Amir El v. La. State, No. 16-2125, 2016

In this case, Plaintiff concedes that his service efforts were insufficient under Rule 4. But

a dismissal without prejudice would effectively bar a new filing. Thus, to find dismissal proper,

this Court must find (1) delay caused by plaintiff himself and not his attorney; (2) actual prejudice

to the defendant; or (3) delay caused by intentional conduct.17 In addition to finding a clear record

of delay or contumacious conduct18 by the plaintiff, the court must also determine that lesser

sanctions would not serve the best interests of justice.19 Defendant has not established that the

delay or defective service was attributable to Plaintiff rather than to counsel or the process server

nor has Defendant established actual prejudice. Likewise, Defendant does not demonstrate that

the delay caused by intentional conduct nor is there any evidence that a lesser sanction would not

serve the best interests of justice.

III. CONCLUSION

Despite Plaintiff’s defective service and absence of good cause, there is a reasonable

prospect that he will be able to serve Defendant properly. Thus, the Court interprets Defendant’s

motion to dismiss as a motion to quash service and exercises its broad discretion to extend

WL 6563403, at *2 (E.D. La. Nov. 4, 2016) (Barbier, J.) (refusing to dismiss action where service is “insufficient but

curable” (citation omitted)); Brown v. Turlich, No. 24-725, 2025 WL 1840828, at *2 (E.D. La. June 4, 2025) (noting

that dismissal is not proper when defendant can be served properly); Thomas v. Stickler, No. 25-289, 2025 WL

1142417, at *2 (E.D. La. Apr. 17, 2025) (Morgan, J.) (noting lenient policy towards pro se plaintiffs and propriety of

allowing a pro se plaintiff an additional opportunity to effect service properly after his first attempt proves inadequate).

17 Millan, 546 F.3d at 326 (citing Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)). To warrant dismissal, the

delay must be more than just a few months; instead, the delay must be characterized by significant periods of total

inactivity.” Hill, 2025 WL 40867, at *2 (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 513 (5th Cir. 2013)

(quotation marks and citations omitted)). The Fifth Circuit has not articulated a bright line rule to define delay. Miller

v. Ohio Sec. Ins. Co., No. 24-30740, 2025 WL 3034704 (5th Cir. Oct. 30, 2025) (comparing Louisiana v. Sparks, 978

F.2d 226, 233 (5th Cir. 1992) (finding 8 months of inactivity sufficient delay justifying dismissal with prejudice), with

Haynes v. Turner Bass & Assocs., No. 20-40787, 2022 WL 2383855, at *1 (5th Cir. July 1, 2022) (finding “short

delay” of 10 months insufficient, resulting in reversal of prejudicial dismissal)).

18 Contumacious conduct is “stubborn resistance to authority” sufficient to justify a dismissal with prejudice, not mere

negligence regardless of how exasperating or careless. McNeal, 842 F.2d at 792 (quotation marks and citation

omitted). Contumacy worthy of prejudicial dismissal requires “willful disobedience of a court order,” In re Deepwater

Horizon, 922 F.3d 660, 666 (5th Cir. 2019), behavior that “threaten[s] the integrity of the judicial process,” Rogers,

669 F.2d at 320, or “no reasonable justification for the plaintiff's conduct.” Lucero, 2023 WL 8622293, at *3.

19 Hill, 2025 WL 40867, at *2. Lesser sanctions include conditional dismissals, dismissals without prejudice, and

explicit warnings by the district court. In re Taxotere (Docetaxel) Prods. Liab. Lit., 966 F.3d 351, 360 (5th Cir. 2020).

Plaintiff's deadline to effect proper service on Tangipahoa Parish School Board on or before

December 10, 2025. Accordingly, for the foregoing reasons,

IT IS ORDERED that Defendant’s Motion to Dismiss, construed as a Motion to Quash, is

GRANTED for the reasons stated herein. Plaintiff shall effect proper service on Tangipahoa Parish

School Board by no later than December 10, 2025. Failure to do so and file proof of service into

the record will result in dismissal of Plaintiffs claims without further notice.

Dated this 19th day of November, 2025.

UNITED STATES MAGISTRATE JUDGE